GOVIND KATARIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant miscellaneous petition has been preferred by the petitioner being aggrieved of the order dated 4.1.2011 passed by the learned Special Judicial Magistrate (N.I. Act) No. 2, Jodhpur in Cr. Case No. 7850/2009 whereby the learned Magistrate whilst reading over the accusation of the offence to the accused petitioner denied him the opportunity of cross examining the complainant and proceeded to examine the accused under Section 313 Cr.P.C. Succinctly stated the facts of the case are that the respondent No. 1 filed a complaint against the petitioner for the offence under Section 138 of the negotiable instruments act in the year 2008. The learned trial Court on the basis of the affidavit filed by the complainant proceeded to summon the accused by order dated 7.1.2008. The accused after being served with process, appeared before the trial court for the first time on 4.1.2011 on which date the learned trial court directed the petitioner to be released on bail. Simultaneously and on the very same day, substance of the accusation was read over to the accused. The accused pleaded not guilty.

(2.) The learned Magistrate proceeded to analyse and interpret the provisions of Negotiable Instruments Act and holding that the burden of proof was on the accused as the presumption of law operated in favour of the complainant and thus the complainant need not be examined on oath on two occasions i.e. one before cognizance and thereafter upon appearance of the accused. The learned Magistrate further observed that the accused was not entitled to cross examine the complainant and his witnesses as of right.

(3.) The learned Magistrate held that after the accusation was read over to the accused.